On May 5, 2011, a huge hole in the Municipal Land Use Law was finally closed when the Time Of Submission Law went into effect. Previously, applications submitted for development approvals were subject to municipal ordinances in effect at the time the decision was rendered. Thus, an applicant could go through the time and expense of preparing plans, filing an application, paying fees, proceeding through public hearings, and an ordinance adopted during the processing of that application would still impact the decision. Even ordinances directed precisely at thwarting a specific application would be given legal effect. (See for instance, Manalapan Realty, LP v. Twp Comm of Twp of Manalapan, 140 NJ 366 (1995) – a NJ Supreme Court Case from 1995 which sustained a zoning ordinance amendment precluding development of a Home Depot enacted while that application was pending.) As the legislative history notes, the new law was designed to protect against inequitable results, effectively prohibiting towns from altering ordinances in direct response to an application for development.
Two aspects of the new law were embraced to ensure fairness in its application. First, the effective date was delayed for a full year. Ostensibly, this was to permit municipalities time to analyze existing ordinances to determine if revisions were needed. Second, ordinance revisions premised on protection of the public health and safety would still be given legal effect.
Our office is currently embroiled in a Time of Submission battle involving the exact circumstance envisioned by the legislature as warranting protection. We will keep you apprised of developments, as this may well become a case of first impression in this State.
James E. Jaworski is a Senior Partner at WJ&L. He also heads up our Real Estate Department and actively practices in Land Use and Development areas.